The State Ex Rel. Murray v. Scioto County Bd. of Elections

• Decision Date: 02 December 2010
• Docket Number: No. 2010–1963.,2010–1963.
• Citation: 939 N.E.2d 157,127 Ohio St.3d 280
• Parties: The STATE ex rel. MURRAYv.SCIOTO COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

127 Ohio St.3d 280

939 N.E.2d 157

2010 -Ohio- 5846

The STATE ex rel. MURRAY

v.SCIOTO COUNTY BOARD OF ELECTIONS et al.

No. 2010–1963.

Supreme Court of Ohio.

Submitted Nov. 30, 2010.Decided Dec. 2, 2010.

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, Columbus, OH, J. Corey Colombo, and Michael P. Stinziano, for relator.Mark E. Kuhn, Scioto County Prosecuting Attorney, and Chadwick K. Sayre, Assistant Prosecuting Attorney, for respondents.PER CURIAM.

[Ohio St.3d 280] {¶ 1} This is an expedited election action for writs of mandamus and prohibition to prevent respondents, the Scioto County Board of Elections and its members, from conducting a December 7, 2010 special election on a mayoral recall. Because the board of elections neither abused its discretion nor clearly disregarded applicable law by determining that the recall petition contained a sufficient number of valid signatures, we deny the writ of prohibition. We dismiss the mandamus claim for lack of jurisdiction.

Facts

Recall Petition

{¶ 2} Relator, M. Jane Murray, is the mayor of the city of Portsmouth, Ohio. On October 9, 2010, a petition seeking an election to recall the mayor was filed with the city. The petitioners sought the recall based on their claims against the mayor specified in the petition:

{¶ 3} “EPA compliance issues.

{¶ 4} “Arbitrary/unlawful placement of traffic control devices.

{¶ 5} “Came out against the best hope for jobs and future security for area families at the Piketon USEC facility by casting the only negative vote to their plans.

{¶ 6} “Placing her own personal wants ahead of the other city employees working under deplorable conditions in the city building by arbitrarily and [Ohio St.3d 281] unlawfully contracting prior to taking office, and after taking office having renovations done to the Mayor's office without having funds authorized and appropriated in accordance with the Ohio Revised Code and Portsmouth City ordinances.

{¶ 7} “Failure to provide a budget for the city of Portsmouth in accordance with the City Charter.

{¶ 8} “Making public remarks about persons that have resulted in three lawsuits having been filed against her and the City of Portsmouth alleging slander and libel.”

{¶ 9} The petition comprises 66 part-petitions containing a total of 1,368 signatures. Each part-petition includes a space for the circulator's affidavit, which provides:

{¶ 10} “I, ________________, being duly sworn, depose and say that I, and I only personally circulated the foregoing petition paper and that all signatures appended thereto were made in my presence and are the genuine signatures of the persons whose names they purport to be.

“__________________

“Subscribed and sworn before me this __ day of ______, 20__.

“__________________

“Notary Public

“(seal)”

{¶ 11} Each part-petition also included the following “notice”: “Whoever commits election falsification is guilty of a felony of the fifth degree.”

{¶ 12} On part-petition 5, which contains seven signatures found by the Portsmouth city clerk to be valid, the circulator signed the first blank of the affidavit but failed to sign the second blank. For part-petition 2, the Portsmouth city clerk credited 15 valid signatures even though it contained only 14 valid signatures.

{¶ 13} On October 20, 2010, the city clerk certified the sufficiency of the recall petition by finding that it contained 1,171 valid signatures, which exceeded the 1,148 valid signatures required by Section 151 of the Portsmouth Charter¹ for a recall petition. On October 28, the Portsmouth City Council enacted Ordinance No. 2010–69, which ordered that a special election on the mayoral recall be held on December 7, 2010. The next day, the city clerk provided a certified copy of the ordinance to the Scioto County Board of Elections.

[Ohio St.3d 282] Protest and Board of Elections Decision

{¶ 14} On October 29, Murray filed a protest with the board of elections against the recall petition. Murray raised several grounds, including the following:

{¶ 15} 1. “All part-petitions fail to contain a statement by the circulator indicating the number of signatures on the part-petition as required by Sections 143 and 165 of the City of Portsmouth Charter (‘Charter’) and R.C. § 3501.38(E) and are invalid.”

{¶ 16} 2. “All part-petitions fail to contain a statement by the circulator as required by Sections 143 and 165 of the Charter and R.C. § 3501.38(E) that to the best of the circulator's knowledge and belief all signers were qualified to sign the petition and are invalid.”

{¶ 17} 3. “Part-petition 5 is invalid because it is not signed by the circulator as required by Sections 27, 143, and 165 of the Charter and R.C. § 3501.38.”

{¶ 18} 4. “The petition fails to contain the minimum number of valid signatures of electors of the City of Portsmouth required by Section 151 of the Charter for the question to be submitted to the voters.”

{¶ 19} On that same day, the board of elections issued a notice that a hearing on the protest would be held on November 8. On November 5, 2010, Murray supplemented her protest with several additional grounds, including that the city clerk had mistakenly counted one invalid signature on part-petition 2 as valid.

{¶ 20} Just before the board's November 8 hearing on Murray's protest against the recall petition, the committee representing the recall petitioners filed its own protest, claiming that the city clerk had erroneously stricken three signatures from the petition. Murray objected to the board's hearing of the recall petitioners' protest on that date due to the protest's lack of timeliness. The board decided not to consider the recall petitioners' claim at the hearing, instead leaving it in abeyance until the board's November 17 regular meeting.

{¶ 21} At the November 8 board hearing on Murray's protest, the parties submitted sworn testimony and other evidence. The board sustained certain grounds of Murray's protest and invalidated an additional 16 petition signatures. The board denied the remaining grounds of Murray's protest, including those previously set forth. The board concluded that the recall petition contained a total of 1,155 valid signatures, which still exceeded the minimum of 1,148 valid signatures required for the December 7, 2010 special recall election.

Mandamus and Prohibition Case and Subsequent Board Meeting

{¶ 22} Four days later, on November 12, Murray filed this expedited election action for writs of mandamus and prohibition to prevent the board of elections [Ohio St.3d 283] and its members from submitting the mayoral recall to the electorate at the December 7, 2010 special election. We issued an accelerated schedule for the submission of an answer, evidence, and briefs. State ex rel. Murray v. Scioto Cty. Bd. of Elections, 127 Ohio St.3d 1433, 2010-Ohio-5534, 936 N.E.2d 963.

{¶ 23} On November 17, at its regular meeting, the board of elections corrected its tabulation of valid signatures in the recall petition by deducting the additional signature the city clerk had mistakenly counted as valid on Part–Petition 2, which was one of the grounds of Murray's protest, and adding the three signatures that the city clerk had previously stricken, which were the subject of the recall committee's November 8 protest. The board validated the three additional signatures when it determined that they were the signatures of the electors they purported to be. The board thus concluded that the correct number of valid signatures on the recall petition was 1,157, which exceeded the 1,148 signatures required. The board made this determination without holding an additional hearing.

{¶ 24} The board of elections and its members filed an answer, and the parties submitted evidence and briefs.

{¶ 25} This cause is now before the court for our consideration of the merits.

Legal Analysis

Mandamus

{¶ 26} Murray requests a writ of mandamus to compel the board of elections to sustain the specified grounds of her protest and to invalidate the recall petition.

{¶ 27} “This court lacks jurisdiction over complaints in mandamus if the allegations establish that the relator actually requests relief in the nature of a declaratory judgment and a prohibitory injunction.” State ex rel. Knowlton v. Noble Cty. Bd. of Elections, 126 Ohio St.3d 483, 2010-Ohio-4450, 935 N.E.2d 395, ¶ 29. “We have applied this jurisdictional rule to expedited election cases by examining the complaint to determine whether it actually seeks to prevent, rather than compel, official action.” State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 20.

{¶ 28} Although some of the allegations and requests for relief in Murray's complaint are couched in terms of compelling affirmative duties, she actually seeks (1) a declaratory judgment that the board erred in denying the specified grounds of her protest and (2) a prohibitory injunction preventing the recall election.

{¶ 29} Therefore, because Murray seeks relief in the nature of declaratory judgment and prohibitory injunction, we lack jurisdiction to consider the merits of her mandamus claim and therefore dismiss it. See Knowlton at ¶ 31; [Ohio St.3d 284] State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 12.

Prohibition

{¶ 30} Murray also requests a writ of prohibition to prevent the board of elections and its members from submitting the mayoral recall to the electorate. To be entitled to the writ, Murray must establish that (1) the board of elections and its members are about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 N.E.2d 609, ¶ 11.

{¶ 31} Murray established the first and third requirements for the writ because the board of elections...